As I explained in my last post, ownership in the copyrights in the data content in an MLS is ‘scattered’ in most MLSs:
- The MLS (or perhaps its MLS vendor or both jointly) owns the copyright in the ‘compilation.’ The MLS may own copyrights in photographs it commissions, if its agreement with the photography contractor provides for an assignment.
- The listing agents own the copyrights in photos they take and remarks that they write. Others, such as agent assistants, third-party photographers, and even home sellers, own copyrights in the images and text they create.
- Listing brokers own copyrights in little or nothing, unless their agents are employees or their independent contractor agreements directly address copyright assignment – most do not.
We want to address some of the problems that ‘scattered ownership’ of copyrights brings to brokers and MLSs. But first, we’ll address two preliminary issues: copyrights in facts and copyright licenses.
(Again, this discussion relies on assumptions, most of which I laid out in my last post, but some of which I’ll attempt to explain here. Your own organization’s issues may be different.)
No copyrights in facts
There is no copyright protection for facts. The fact that 123 Elm Street is for sale is not protected by copyright. Neither is the fact that 123 Elm has three bedrooms. Creative expression relating to facts is protected by copyright, to the extent it includes a “spark of creativity.” So copyright protects the MLS remarks of an agent who writes poetry (or even hyperbole) regarding the factual characteristics of a house; but not his statement that “123 Elm has 3 bedrooms.”
This exclusion of facts from copyright protection goes one step further: If you are trying to get at the facts in a copyright-protected compilation (like an MLS database), it is permissible to make a copy of the copyright-protected compilation, even without the owner’s permission, in order to get at the copyright-unprotected facts. In other words, so long as I’m just trying to get at the facts for a lawful purpose, copyright law does not prevent me from copying your whole database. I just need to ‘discard’ the parts that are subject to your copyright.
Express and implied licenses
As I mentioned in my last post, the transfer of a copyright, an “assignment,” can happen only by a writing signed by the transferor. But assignment is not the only way to get the ability to use a copyright-protected work. The owner can also give a “license,” which is permission to use the protected work. The “scope” of a license is often limited based on the use expected, a time period, geography, and other factors. For example, the author of a magazine article might grant “first North American serial publication” rights to a magazine; this grant limits the form, geography, and time period of publication by the magazine.
A license can be express, that is, the licensor says, “I grant you a license/permission to use my work in the following way.” Licenses can be oral – they do not have to be in writing.
A license can also be implied. If your conduct unambiguously implies that you are granting a license, then you cannot later complain that you did not grant the license. So, for example, when a real estate agent allows a photo he took to be uploaded to the MLS, we expect the MLS now has an implied license from that agent to use the photo for the purposes permitted under the MLS’s rules and policies. If the MLS copies and distributes the photo throughout the MLS to other brokers and agents, the agent who took it cannot argue this is copyright infringement.
One problem with implied licenses is that their scope is often unclear. By putting the photo in the MLS, is the agent granting a license for the MLS to commercialize the photo in other ways? Can MLS license MLS data including the agent’s photo to RPR, First American, or other third parties? Can the agent demand that her photos be excluded from such licensing? In many cases, the answer is unclear.
A second problem with implied licenses is that the licensor can often revoke them. In other words, the implied license lasts only so long as the licensor does not take any action that destroys the unambiguous implication of consent. For example, “I do not consent to my photo being used for X.”